Wednesday, April 17, 2013

Hard Cases Make Bad Law. Dissatisfaction With One Case, No Reason To Change The Code of Justice.

Lt. Gen. Craig Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany convened a court-martial
to try Lt. Col. James Wilkerson III on charges of, among other things,
sexual assault of a female, not his wife. Lt. Col. Wilkerson was tried
by a jury and found guilty as charged. In performing his duties as
Convening Authority under the Uniform Code of Military Justice (UCMJ),
Lt. Gen. Franklin set aside the sexual assault conviction.

The February 2013 decision ignited a firestorm on Capitol Hill and drew
scrutiny to the separate set of laws governing military members, known
as the UCMJ. Following his review of the
case, Defense Secretary Chuck Hagel proposed removing the
convening authority from commanders in major cases.
(He did not specify what he thought would constitute a major case.)

Lt. Gen. Franklin defended his decision in a six-page letter
he submitted to the service in response to the uproar. He said
accusations that his motivation was to protect a fellow fighter pilot
are "preposterous." Accusations that he doesn't understand sexual assault or take the crime
seriously "are complete and utter nonsense," he wrote. Allegations that
his decision was influenced by his previous role commanding a unit the
pilot later served in "are equally preposterous," he wrote.

In the letter, Franklin, says he
struggled with the decision. However, after he reviewed the evidence, he
found the defendant, Lt. Col. James Wilkerson III, and his wife, Beth,
more credible than the alleged victim, Ms Kimberly Hanks, who has since
come forward publicly to discuss the matter.
Approving the jury's finding of guilt "would have been an act of
cowardice," Franklin wrote. "I hold a genuine and reasonable doubt that
Lt. Col. Wilkerson committed the crime," he wrote. "My court-martial
action to disapprove findings and to dismiss the charges was the right,
the just, and the only thing to do."

Wilkerson, then the inspector general at Aviano Air Base in Italy and
a former F-16 pilot, was found guilty of multiple charges to include
aggravated assault. He was sentenced to a year in prison and dismissal
from the service before Franklin overturned the conviction.

Ms Hanks accused him of fondling her breasts and genitalia as she slept
in his guest bedroom, according to court documents. The two met at a
club with groups of friends after a rock concert that was held on base,
organized by the USO and featuring the alternative rock band, Seether,
according to her testimony.

Ms Hanks is a divorcee. She worked as a civilian contractor in the medical
clinic on the base. She alleged that she previously did not know Lt. Col.Wilkerson but some how she wound up at his
home in Roverado. Ms Hanks said she awoke in a
bedroom with Lt. Col.Wilkerson when his wife entered the room, turned on the
lights and said: "What the hell is going on?"

Ms Hanks testified that the woman then ordered her to, "Get the hell out of my house."
In his letter, Lt. Gen. Franklin said he was persuaded in part by the many
letters of clemency from family, friends and colleagues of the
Lt. Col. Wilkersons that "painted a consistent picture of a person who adored his
wife and 9-year-old son, as well as a picture of a long-serving
professional Air Force officer."

Lt. Gen. Franklin also makes a point to cast doubt on Lt. Col. Wilkerson's failed polygraph test.
"A polygraph is only an investigative tool to assist in the potential
focus of the investigation and/or to attempt to elicit admissions of
guilt," he wrote. "It is not a ‘lie-detector test,' nor is it ‘pass' or
‘fail.' Because of the inherent unreliability of polygraphs, they are
entirely inadmissible in a court-martial."

As one would expect, lawmakers and supporters of sexual-assault victims were shocked by Lt. Gen. Franklin's letter.

"This explanation crystalizes exactly why the convening authority
should not have the unilateral ability to overturn a jury verdict -- and
why we need legislation that restricts their ability to do so," Sen.
Claire McCaskill, D-Mo., said in a statement.
"This letter is filled with selective reasoning and assumptions from
someone with no legal training, and it's appalling that the reasoning
spelled out in the letter served as the basis to overturn a jury verdict
in this case."

In light of the case, McCaskill introduced legislation that would
curtail the authority of military commanders to dismiss jury convictions
against sex offenders.

Protect Our Defenders, a nonprofit based in Burlingame, Calif.,
called for Lt. Gen. Franklin to be dismissed from the military. "Lt. Gen.
Franklin made a deeply flawed and inappropriate decision," the group's
president, Nancy Parrish, said in a statement.
"Rather than rely on the credibility determinations of the senior
members of the jury he selected, Franklin chose to accept the word of
Wilkerson's supporters."

Lt. Col. Wilkerson will remain on active duty and is being transferred to
Davis-Monthan Air Force Base, Ariz., where he will become chief of
flight safety for the 12th Air Force (Air Forces Southern), according to
Master Sgt. Kelly Ogden, a spokeswoman for the unit. He is expected to
arrive later this month or in early May.

Defense Secretary Chuck Hagel on April 8 said he would ask Congress
to pass legislation that would prevent commanders from overturning
convictions without explanation.
In 2011, less than half of the reported 3,200 sexual assaults in the
military resulted in disciplinary action, according to the Defense
Department. The number of actual sexual assaults each year is probably
closer to 19,000, based on anonymous surveys of active-duty service
members.

(U. S. Air Force Academy cadets charged with sexual assault.)

The number of sexual assaults at military academies has been on the
rise. No cadet tried or convicted of sexual assault has had his
conviction set aside by the Convening Authority. Sexual assault reports at the Air Force Academy jumped nearly 60
percent during the last academic year while the prevalence of the crime
remained about the same, according to a new Defense Department study.
The results, which mirror the two other service institutions — the
Military Academy and the Naval Academy — signal greater victim
confidence but show that efforts to reduce sexual assaults among future
military leaders have been unsuccessful.
Air Force cadets made 52 sexual assault reports during the 2011-2012
year, up 58 percent from 33 in 2010-2011. They also accounted for 65
percent of the 80 reports made at all three academies, despite sim­ilar
student populations.
In 44 of the 80 reports, victims said they were victimized by a
fel­low cadet or midshipman, the study said. Twenty-five incidents
occurred on academy grounds.

(U. S. Coast Guard Academy cadet, Webster Smith)
A
cadet at the U. S. Coast Guard Academy was convicted of sexual assault
in 2006. It was the first court-martial of a cadet in the history of the
U. S. Coast Guard. Cadet Webster Smith was only six months away
from graduating when he was accused, tried, and convicted. He protested
his innocence. His case was appealed all the way to the U. S. Supreme
Court, but the Supreme Court refused to grant a review of the
conviction. Cadet Smith's petition was dismissed without comment by the
Supreme Court.

The Webster Smith Story is an American tragedy. It is not just the
story of a Coast Guard Academy cadet; it is the story of an
American family. To his classmates, teachers, and coaches at the Coast
Guard Academy Webster Smith appeared to be a magnetic, charming and
gifted man, who had risen above his circumstances. Yet, in a moment, as
if in the twinkling of an eye, a swift series of events diminished his
popularity, vilified his name, and assailed his honor. His image was
converted by senior Coast Guard officers from a popular athlete and nice
guy to that of a sexual predator and public enemy number one at the
Coast Guard Academy. The Webster Smith case was a litmus test for justice
in America.

(Ariana Klay, former USMC officer)Lt. Ariana Klay, a U. S. Naval Academy graduate, served as a
protocol officer for the U. S. Marine Corps Barracks, Washington, DC. She alleged that while there,
she was sexually harassed by a lieutenant colonel, a major and a
captain. She said she was gang-raped by a Marine officer and his
civilian friend, a former Marine.
Lt. Klay alleged that the Marine officer
threatened to kill her and told his friend he would show him “what a
slut she was” and “humiliate” her.
After she reported the alleged rapes and subsequent harassment, the
Marine Corps investigation ruled that she welcomed the harassment
because “she wore makeup, regulation-length skirts as a part of her
uniform and exercised in running shorts and tank tops.”
The Marine Corps did not punish any of those who were accused of
sexually harassing Lt. Klay. One of her alleged harassers was granted a
waiver by the Corps that permitted him to get a security clearance
despite accusations of hazing and sexual misconduct against not only Lt.
Klay but many others. He was selected to be in a nationally televised
recruitment commercial while he was still under investigation.
The Marine Corps finally court-martialed one of Lt. Klay’s alleged attackers
but didn’t convict him of rape, instead finding him guilty of adultery
and indecent language (a common escape by military courts from the rape
charge). The military court ruled that Lt. Klay “consented” to having sex
with the men despite the evidence that the accused threatened to kill
her.
Lt. Klay has attempted suicide since the alleged rapes and harassment and
has been diagnosed with post-traumatic stress disorder.

1 comment:

Sen. Claire McCaskill in Senate Hearings before the Armed Services Committee on June 4, 2013 said that Lt. Gen. Franklin’s six page letter was “astonishingly ignorant”. She and Senator Kirstin Gilliband said that most senior (male) officers “do not know the difference between a slap on the ass and rape”. Not every allegation of inappropriate contact amounts to a case of rape, but it can create a "toxic environment" that gives rise to sexual harassment and sexual assault. {See the Case of LTJG C. D. Balboni on the USCGC Rush (WHEC)}

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